FEDERAL COURT OF AUSTRALIA

Ferdinands v Registrar Burns (Vexatious Proceedings Order) [2024] FCAFC 157

ORDERS

THE COURT NOTES THAT:

A.    Entry of the orders in paragraphs 1 and 2 below represents the determination of the process outlined in orders 2 to 4 of the orders made on 21 August 2024 (the 21 August 2024 Orders) referred to in:

I.    order 1 of the 21 August 2024 Orders in proceeding SAD1/2024; and

II.    order 5 of the 21 August 2024 Orders in proceeding SAD16/2023.

THE COURT ORDERS THAT:

1.    Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Mr Trevor Kingsley Ferdinands be prohibited from instituting proceedings in this Court (whether alone or in concert with another person) without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act and obtaining leave in accordance with s 37AT of the FCA Act.

2.    The District Registrar is to cause a copy of these Orders and the Reasons for Judgment to be sent to Mr Ferdinands using the last known email address used by Mr Ferdinands in his communications with the Registry.

3.    These orders be entered forthwith.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    These reasons are addressed to the determination of whether a vexatious proceedings order should be made against Mr Trevor Kingsley Ferdinands pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

2    These reasons assume familiarity with the Appeal Judgment in Ferdinands v Registrar Burns [2024] FCAFC 105 in which the Court dismissed two Appeals instituted in respect of separate review decisions of two primary judges concerning administrative decisions made by two registrars to reject documents submitted for filing by Mr Ferdinands.

3    For the reasons that follow we have concluded that the Court should exercise its discretion to make a vexatious proceedings order against Mr Ferdinands. The effect of the order will be that Mr Ferdinands will be precluded from instituting proceedings without the leave of the Court. The Court’s power to grant leave will be fettered so that leave may be granted only if the Court is satisfied that the proceeding is not a vexatious proceeding. In reaching this conclusion, we are conscious of the seriousness of making the order, but we are satisfied that it is warranted. Mr Ferdinands is a person who has, over many years, frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. His uninhibited access to the courts has been, and if permitted to continue will likely continue to be, a serious drain on public resources to the detriment of other litigants, a disruption to the efficient management of the operation of this and other courts and prone to bring the administration of justice into disrepute.

BACKGROUND

4    The issue of whether to make a vexatious proceedings order arises as a result of the Court instituting, in effect, a show cause process pursuant to s 37AO(2)(b) of the FCA Act as a result of its review of materials in the course of considering the Appeals addressed in the Appeal Judgment. In the Appeal Judgment, the Court expressed a preliminary view that it may be able to be satisfied that Mr Ferdinands “has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals” within the meaning of s 37AO(1)(a) of the FCA Act and, if this is established, the Court may exercise its discretion to make a vexatious proceedings order against Mr Ferdinands.

5    Mr Ferdinands has instituted many proceedings in many different courts and tribunals over many years. Mr Ferdinands’ near constant purpose has been to attempt to ventilate (and re-ventilate) grievances he holds in relation to events dating back to 1999. The key events giving rise to Mr Ferdinands’ discontent appear to be as follows. On 4 November 1999, he was convicted of an assault of an inferior by a Defence Force Magistrate. His penalty was to be demoted from the rank of corporal to private. In April 2001, Mr Ferdinands attempted to appeal out of time to the Defence Force Discipline Appeal Tribunal but his application for an extension of time was refused. On 27 February 2001, he was convicted of an assault in the Adelaide Magistrates Court. In November 2001, Mr Ferdinands was dismissed from the South Australian Police Service. As will be demonstrated in the analysis which follows, Mr Ferdinands appears to have exhausted all available avenues of challenging his convictions and the termination of his employment. Yet he persists. The Appeal Judgment represents yet another unsuccessful and unmeritorious pass over the same target.

6    At the time of determining the Appeals, having concluded that the Appeals ought be dismissed, the Court raised whether a vexatious proceedings order ought be made in relation to Mr Ferdinands (21 August Orders). Before embarking on the process of considering whether the Court should exercise its discretion to make a vexatious proceedings order against Mr Ferdinands, the Court made the following orders directed to providing procedural fairness to Mr Ferdinands:

2.    On or by 4 weeks from date of these orders, the appellant:

(a)    file any material upon which he intends to rely to oppose an order (proposed order) being made in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Trevor Kingsley Ferdinands be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

(b)    notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the proposed order ought be made by the Full Court and, in the absence of such notification, the issue as to whether the proposed order ought be made be dealt with on the papers by the Full Court.

3.    On or by 6 weeks from the date of these orders, in the event that an amicus curae is appointed to assist the Court in connection with whether the proposed order ought be made, the amicus provide any material including written submissions to District Registrar Colbran who will provide copies to the appellant and to the Full Court.

4.    Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Federal Court of Australia Act 1976 (Cth) is to be listed for hearing by the Full Court on a date to be fixed not earlier than 8 weeks from date of these orders.

7    Mr Ferdinands did not file any material in accordance with order 2(a) of the 21 August Orders. Mr Ferdinands did not request an oral hearing within the time required by order 2(b) of the 21 August Orders, or at all. In those circumstances, the Court did not appoint an amicus curae to assist, as had been contemplated by order 3 of the 21 August Orders.

8    Accordingly, on 27 September 2024, the Court made orders that the issue as to whether the proposed order ought be made be dealt with on the papers (27 September Orders). The 27 September Orders annexed a list of proceedings in which it appears that Mr Ferdinands has been a party. This list was based on a search of the Court’s records and legal databases. Mr Ferdinands was given an opportunity to make submissions in relation to the list of proceedings and a further opportunity to make submissions more generally. Mr Ferdinands did not file any submissions pursuant to the 27 September Orders.

9    On 27 September 2024, Mr Ferdinands sent a lengthy email to the Registry in which he said that he would not open or read the 21 August Orders, the 27 September Orders or the documents which had been provided to him. He also said that he had “commenced” applications for special leave to appeal to the High Court from the Appeal Judgment. Each of the applications for special leave to appeal (including annexures) exceeds 90 pages. On 5 December 2024, the High Court dismissed Mr Ferdinands’ application for special leave: Ferdinands v Registrar Burns [2024] HCASL 312.

VEXATIOUS PROCEEDINGS ORDERS – APPLICABLE PRINCIPLES

10    The principles relating to the making of a vexatious proceedings order were summarised by the Full Court in Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318 at [13]-[21] (Lee, Feutrill and Jackman JJ).

11    Section 37AO of the FCA Act empowers the Court to make a vexatious proceedings order and relevantly provides:

37AO    Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    …

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative …

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) … is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

    including proceedings instituted (or attempted to be instituted) or conducted,     and orders made, before the commencement of this section.

12    The following terms used in s 37AO are defined by s 37AM(1):

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a)    for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

(b)    for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

(c)    for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

(d)    for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceeding:

(a)    in relation to a court—has the meaning given by section 4; and

(b)    in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

proceedings of a particular type includes:

(a)    proceedings in relation to a particular matter; and

(b)    proceedings against a particular person.

vexatious proceeding includes:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

vexatious proceedings order means an order made under subsection 37AO(2).

13    Section 4 of the FCA Act defines “proceeding” to mean “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal”. The term “proceeding” encompasses the filing of an interlocutory application: Storry at [24]; see also Ramsey v Skyring [1999] FCA 907; 164 ALR 378 at 391 [59] (Sackville J); Mathews v State of Queensland [2015] FCA 1488 at [92] (Reeves J).

14    Sections 37AQ to 37AT of the FCA Act set out the consequences which flow from the making of vexatious proceedings orders:

37AQ    Proceedings in contravention of vexatious proceedings order

(1)     If the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Court:

(a)     the person must not institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT; and

(b)     another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT.

(2)     If a proceeding is instituted in contravention of subsection (1), the proceeding is stayed.

(3)     Without limiting subsection (2), the Court may make:

(a)     an order declaring a proceeding is a proceeding to which subsection (2) applies; and

(b)     any other order in relation to the stayed proceeding it considers appropriate, including an order for costs.

(4)     The Court may make an order under subsection (3) on its own initiative or on the application of any of the following:

(a)     the Attorney-General of the Commonwealth or of a State or Territory;

(b)     the Chief Executive Officer;

(c)     a person against whom another person has instituted or conducted a vexatious proceeding;

(d)     a person who has a sufficient interest in the matter.

37AR    Application for leave to institute proceedings

(1)     This section applies to a person (the applicant) who is:

(a)     subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or

(b)     acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2)     The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.

(3)     The applicant must file an affidavit with the application that:

(a)     lists all the occasions on which the applicant has applied for leave under this section; and

(b)     lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c)     discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4)     The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

37AS    Dismissing application for leave

(1)     The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3).

(2)     The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.

(3)     The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).

37AT    Granting application for leave

(1)     Before the Court makes an order granting an application under section 37AR for leave to institute a proceeding, it must:

(a)     order that the applicant serve:

(i)     the person against whom the applicant proposes to institute the proceeding; and

(ii)     any other person specified in the order;

with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

(b)     give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

(2)     At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(3)     The Court may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate.

(4)     The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.

15    The consequences of a vexatious proceedings order may include that the person the subject of the order is precluded from instituting proceedings, or proceedings of a particular type, without the leave of the Court: s 37AQ(1)(a) of the FCA Act. As Wheelahan J observed in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 at [6], the Court’s power to grant such leave is fettered, because leave may be granted only if the Court is satisfied that the proceeding is not a vexatious proceeding: s 37AT(4).

16    A vexatious proceedings order has been described as an “extreme” measure which should not be used lightly: Soden v Kowalski [2011] FCA 318 at [35] (Stone J) as endorsed in Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; 198 FCR 153 at [58] (Jacobson, Siopis and Nicholas JJ). As the New South Wales Court of Appeal explained in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] (Beazley P, Emmett JA and Sackville AJA):

… [A]n order restricting a person’s access to the courts is a very serious matter and thus an order under the [Vexatious Proceedings Act 2008 (NSW)] is not to be made lightly. The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits.

17    As observed in Storry at [18], although a vexatious proceedings order is, by its nature, exceptional and serious, that should not mean that a Court should shrink away from making a vexatious proceedings order if the preconditions to it being made are established and if it is appropriate to do so. Although an order restricting a person’s access to the courts is not to be made lightly, the extent of the increasing disruption to the efficient management of the Court’s business caused by allowing vexatious proceedings to be instituted and maintained is also a serious matter. Further, it must be recognised that the consequence of a vexatious proceedings order is not to impose an insuperable barrier to litigation by a vexatious litigant entirely, but to control such litigation by imposing a requirement for leave as, in effect, a filter to the vexatious litigant’s otherwise uninhibited access to the courts and particularly in relation to the future proliferation of fresh vexatious proceedings.

CONSIDERATION

18    Section 37AO(1)(a) of the FCA Act provides that four cumulative conditions must be satisfied before the Court’s power to make a vexatious proceedings order under s 37AO(2) is enlivened. It must be established that the person has: (1) frequently; (2) instituted or conducted; (3) vexatious proceedings; (4) in Australian courts or tribunals. These conditions are closely connected, and it is convenient to address them collectively. In assessing whether these conditions are satisfied, the Court may have regard to orders of courts or tribunals in other proceedings, and the conduct of those proceedings: s 37AO(6); Mathews at [103]; HWY  Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [102] (Perry J). In the present proceeding, it is relevant for the Court to have regard to Mr Ferdinands’ overall conduct in the proceedings he has conducted in Australian courts or tribunals (including his compliance or otherwise with orders made by the relevant courts and tribunals): s 37AO(6).

Proceedings instituted by Mr Ferdinands

19    It appears that since September 2000, Mr Ferdinands has been a party to at least 50 proceedings in Australian courts and tribunals. We have set out in the following Table a brief summary of each of those proceedings, supplemented for illustrative purposes in the analysis which follows. For completeness, we note that the Table does not include proceedings which preceded September 2000 (including disciplinary proceedings dating back to 1998 when Mr Ferdinands was a serving police officer and the proceedings in which Mr Ferdinands was convicted on counts of assault, first, in 1999 by a Defence Force Magistrate and second, in 2001 by a Magistrate in the Adelaide Magistrates Court). Unless otherwise indicated, Mr Ferdinands conducted the proceedings as a litigant in person. The Court further notes that the chronology of Mr Ferdinands’ early litigation has been canvassed in other judgments: see for example, Ferdinands v District Court of South Australia [2010] SASC 265 at [32] (Gray J).

20    Based on our review of the judgments available in the proceedings summarised in the above Table, the Court draws the following conclusions.

21    Between 8 September 2000 and the date of this judgment, Mr Ferdinands has lodged or filed over 50 proceedings: in the High Court (18), in this Court (20), in the District Court of South Australia (5), in the Supreme Court of South Australia (7), in the South Australian Industrial Relations Court (1) (making a total of 13 in South Australian courts collectively) and in the Defence Force Discipline Appeal Tribunal (3). 

22    Mr Ferdinands enjoyed some limited success in the early part of the period, but viewed as a whole it is plain that Mr Ferdinands has continually failed over a long period of time to obtain the substantive relief that he seeks. Undeterred, Mr Ferdinands continues, with apparent disregard to the reasons given for dismissing his proceedings, to regurgitate substantially the same stale allegations in his attempts to bring fresh proceedings.

23    More recently, as illustrated in the Appeal Judgment, Mr Ferdinands has hit a terminal loop. He attempts to file documents (which on their face are scandalous, vexatious or an abuse of process). The documents are then rejected by a Registrar as a result of an administrative decision under rule 2.26 of the Federal Court Rules 2011 (Cth). Mr Ferdinands then seeks a review of the Registrar’s decision by a single judge of the Court. That review is then dismissed, and Mr Ferdinands appeals from the primary judge’s decision to the Full Court. That appeal is then dismissed and Mr Ferdinands seeks special leave to appeal the decision of the Full Court to the High Court. As illustrated by the 2023 High Court proceedings listed in the Table at rows 51 and 52, there may be an additional circuit in the High Court whereby a Justice of the High Court directs that Mr Ferdinands’ documents submitted for filing be rejected under rule 6.07.2 of the High Court Rules 2004 (Cth) (see [2023] HCATrans 101) and Mr Ferdinands then seeks leave to appeal from that decision, which must then be determined by two Justices of the High Court (see [2023] HCASL 191).

24    At each stage of this process, Mr Ferdinands expands the list of persons against whom he makes serious and scandalous allegations, extending the reach of his accusations from the various politicians whom he holds responsible for his dismissal from the police service to each of the decision-makers involved in each stage of the legal proceedings.

25    A recurrent theme in the judicial observations is that Mr Ferdinands’ proceedings are misconceived as to the relevant court’s jurisdiction and the processes of the court and that they lack a cogent legal foundation for the claims which he seeks to advance. An additional feature of the way in which Mr Ferdinands has conducted his proceedings is his readiness to make scandalous allegations without any serious attempt to substantiate the claims. The proceedings he has instituted have regularly attracted the epithet of being an abuse of process.

26    In proceedings filed over more than two decades, Mr Ferdinands has frequently failed to abide by the requisite time limits imposed for bringing such claims. His consequential applications for extensions of time have often been found to be unsupported by explanations for his delay in filing. Notwithstanding this, save for the proceeding in row 10 of the Table which was dismissed for want of prosecution, Mr Ferdinands’ applications have in the main been determined on their merits and dismissed. His appeals from refusal decisions have been similarly heard and dismissed. His claims have repeatedly attracted criticism as being without merit.

27    Mr Ferdinands’ grievances which underlie his many proceedings have been litigated exhaustively to the endpoint of any available avenue of appeal, including the dismissal of applications for special leave to the High Court. Of the 16 applications made by Mr Ferdinands to institute appeals to the High Court since 2004, 15 were dismissed. Mr Ferdinands obtained partial success on one occasion on 4 March 2005 (row 15 of the Table) and was granted special leave to appeal on one ground, being the question of whether provisions of the Police Act 1998 (SA) precluded a police officer from applying under the Industrial and Employee Relations Act 1994 (SA) for relief where the employment of a police officer has been terminated. In granting leave to appeal, the High Court observed that this was “a very narrow and important, perhaps, but technical issue”. The High Court directed Mr Ferdinands to reformulate completely the draft notice of appeal so that it reflected the confined scope of the appeal. The High Court also informed Mr Ferdinands that he should obtain legal representation and indicated the potential costs consequences if the appeal did not succeed. In the end result, the appeal was dismissed by majority (4-1) with costs (row 16 of the Table).

28    It is also the case that Mr Ferdinands repeatedly institutes proceedings against the same respondents. Of the proceedings in the Table, Mr Ferdinands has commenced: eight proceedings against the Commissioner of Police; 12 proceedings against the Chief of Army; four proceedings against the state of South Australia; four proceedings against the Minister for Defence; seven attempts to claim against the Premier of South Australia; and seven applications for review of decisions made by Registrars of this Court. In proceeding against these parties, Mr Ferdinands has attempted to prosecute serious allegations which he contends should be investigated by the Court, but he has failed to advance bona fide questions of law or competent grounds of appeal. His allegations do not rise above the level of accusation and he does not attempt in any serious way to substantiate the claims he makes.

29    The Full Court in Storry observed at [66] that the meaning of the word “frequently” is relative, and must be viewed in context: Teoh at [46]–[49] (Beazley P, Emmett JA and Sackville AJA). The total number of proceedings may be small if a litigant attempts to relitigate or reagitate issues previously determined: Fuller v Toms [2015] FCAFC 91; 234 FCR 535 at 545 [33]–[34] (Besanko, Logan and McKerracher JJ). In the context of Mr Ferdinands’ industriousness, it is not necessary to revert to distinctions of this nature. Mr Ferdinands ticks both boxes by virtue of the large number of proceedings he has brought or attempted to bring, and by the fact that he continues to plough the same patch of earth, repeatedly attempting to relitigate the sequelae of the events of 1999 to 2001. The totality of the proceedings instituted by Mr Ferdinands comfortably satisfies the condition as to frequency.

30    The condition in relation to the relevant fora being Australian courts or tribunals is clearly satisfied — the proceedings commenced by Mr Ferdinands have traversed numerous State and Federal courts and tribunals.

31    In determining whether Mr Ferdinands has commenced proceedings which were vexatious, in that they constituted an abuse of process or were instituted or pursued without reasonable grounds, the Court is not required to make findings about the facts in issue but rather, to take account of the record and make an assessment as to its character. As noted above, the Court may take into account the matters described in s 37AO(6) of the FCA Act. Section 91 of the Evidence Act 1995 (Cth), which provides that evidence of a decision, or of a finding of fact in another proceeding, is not admissible to prove the existence of a fact that was in issue in that proceeding, does not preclude this Court from relying on the orders and reasons for judgment in other proceedings for the purposes of considering whether a proceeding is vexatious (and hence whether s 37AO(1) is engaged).

32    Each proceeding identified in the Table was instituted and conducted by Mr Ferdinands as a litigant in person, with the exception of two of his early proceedings in which he was represented (rows 1 and 7 of the Table) and, as mentioned, his appeal to the High Court in which he was directed to obtain legal representation (rows 15 and 16 of the Table). As a litigant in person, Mr Ferdinands is required to observe the Court’s procedural requirements and jurisdictional limits. The observations of the Full Court in Manolakis v Carter [2008] FCAFC 183 at [9]-[10] (Spender, Graham and Tracey JJ) are apposite:

9     Whatever the difficulties facing an applicant in person may be, those difficulties cannot justify a departure from the Rules relating to the institution and conduct of proceedings and to pleadings such that anything will go.  Justice requires fairness to all parties.  A respondent is entitled, at the least, to know the case that is brought against him or her and the rudimentary facts upon which that case is based.

10     Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private ‘Royal Commissions’. Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous tirades directed at those whom they perceive to have wronged them, judicial officers who may have decided not to find for them, or judges whose duty it is to hear them, when such litigants sense that the expressions of their grievances are not being favourably received by the court.

33    It would unnecessarily lengthen these reasons to deal with each proceeding in the Table separately. The Court is satisfied that the condition in s 37AO(1)(a) as to the commencement of vexatious proceedings is amply satisfied by the following illustrations.

The 2008 application and related appeals

34    Ferdinands v Chief of Army [2008] FCA 1865 concerned an application made by Mr Ferdinands in the High Court for an extension of time to file show cause proceedings which was remitted to this Court for hearing. Justice Lander described the “thrust of Mr Ferdinands’ complaints” as “that he was wrongly convicted in the Adelaide Magistrates Court of common assault and wrongly convicted by a Defence Force Magistrate of assault” (at [8]). Justice Lander refused the application and was satisfied that the proceeding commenced by Mr Ferdinands in the High Court was “patently an abuse of process” and had no prospects of success (at [26] and [41]). Justice Lander addressed the nature of the application as follows (at [39]-[40]):

39     The applicant frankly said that he intended to challenge in this proceeding the convictions. He went into detail about the evidence before the Defence Force Magistrate. The applicant has exhausted all avenues of appeal from the decision of the Defence Force Magistrate and, indeed, from the Adelaide Magistrates Court. It is not appropriate to challenge the conviction by way of application to show cause. I acknowledge that Mr Ferdinands has a strong belief that the conviction which was entered by the Defence Force Magistrate was a result of a combination of conspiracy, incompetence and fraud, but they are matters which have already been dealt with by the appropriate appeal tribunals.

40     They are matters which cannot be inquired into on a proceeding of this kind. Moreover, the application clearly seeks, insofar as it goes further than seeking the re-opening of the two convictions to which I have referred, a merits review of Brigadier Appleton’s decision. It does, notwithstanding the use of the language in the application, not raise any question of law which would give rise to the relief sought. There are no prospects that the applicant will succeed in obtaining the issue of the writ of certiorari and consequently the issue of the writ of mandamus.

35    Being dissatisfied with that decision, Mr Ferdinands sought leave to appeal Lander J’s decision. In Ferdinands v Chief of Army [2009] FCA 22, Mansfield J refused leave and observed that Mr Ferdinands “has not identified any matter in which Lander J might have fallen into error, even arguably so” (at [19]).

36    On 7 April 2009, Mr Ferdinands commenced proceedings in the High Court by application for an order to show cause directed to Lander J, Mansfield J and the Chief of Army.  The Chief of Army appeared in the proceeding and applied for summary termination of the proceeding. In Ferdinands v His Honour Lander J & Ors [2009] HCATrans 194, Hayne J dismissed the appeal, noting:

Mr Ferdinands points to no matter which would provide any arguable basis for concluding that this Court should now grant relief of the kind which he seeks directed to the quashing of either the order of Justice Lander or the order of Justice Mansfield.

The various matters that have been mentioned through the affidavits and in the initiating process in this Court in no case raise any arguable basis for a grant of the relief which is sought.

The 2010 application and related appeals

37    In Ferdinands v District Court of South Australia & Ors [2010] SASC 265, Mr Ferdinands applied for an extension to bring judicial review proceedings in the Supreme Court of South Australia. Justice Gray dismissed the application. His Honour observed that a table provided by the defendants summarising actions involving Mr Ferdinands since 1998 indicated that (at [32]):

[o]f the 46 actions, it is apparent that 37 have involved the State. It was also said that of those 37 actions, 33 have been commenced by Mr Ferdinands. The subject matter underlying the within proceeding, as set out earlier, has been litigated exhaustively in a range of tribunals and courts since 1998.

38    Justice Gray described Mr Ferdinands’ pleadings as being “in a confused manner” and an affidavit filed by Mr Ferdinands as “rambling and contains scandalous material, making allegations of inter alia fraud” (at [32]-[33]). His Honour described Mr Ferdinands’ conduct as a “convoluted omnibus of litigation” arising from disciplinary proceedings 12 years prior (at [3]). Notwithstanding this strident criticism directed to his conduct in that decision, Mr Ferdinands was not dissuaded. He has continued to litigate or attempt to litigate these very same issues.

39    In Ferdinands v Minister for Defence [2011] HCATrans 173, Crennan J dismissed an application for special leave, describing the proceeding as being in substance another attempt on Mr Ferdinands’ part to challenge his conviction of November 1999 and dismissal of November 2001, in respect of which he has exhausted all avenues of appeal. Her Honour found that the documents filed by Mr Ferdinands were “prolix and embarrassing in form … disclose no arguable basis for a grant of the relief sought”. Justice Crennan was satisfied that the proceedings amounted to an abuse of process.

40    Following the decision of Crennan J in Ferdinands v Minister for Defence [2011] HCATrans 173, Mr Ferdinands applied to the Full Court of the Supreme Court of South Australia for permission to appeal, and an application for an extension of time within which to appeal against, the decision of Gray J: Ferdinands v District Court of South Australia & Ors [2011] SASCFC 139. Justice Vanstone (with whom Anderson and Stanley JJ agreed) observed at [6] that Mr Ferdinands’ argument depended upon characterising the setting aside of a judgment as being “in the nature of an appeal”, which is “fallacious”. Justice Vanstone upheld objections to the material on which Mr Ferdinands sought to rely on the basis that the material was irrelevant and specific parts were singled out as amounting to argument, or being of a scandalous or vexatious nature. In this proceeding, Mr Ferdinands contended that, in the alternative, his complaint involved “racism, fraud, dishonesty and corruption” and that the true nature of the ongoing action of the Police Commissioner was revealed as “sustained and heightened retaliation and retribution against a whistleblower”. Allegations to this effect have been made repeatedly by Mr Ferdinands in the proceedings that he has subsequently instituted. The applications were refused.

The 2017 application and related appeals

41    In Ferdinands v The State of South Australia (No 2) [2017] FCA 1436, Mr Ferdinands commenced proceedings in relation to alleged breach of copyright said to subsist in literary works allegedly authored by him. In that proceeding Charlesworth J described Mr Ferdinands as “a seasoned litigator in the sense that he has, over a long period of time, been engaged in a number of legal proceedings following and concerning the termination of his employment” (at [2]). Her Honour made orders granting summary judgment in the respondent’s favour on the basis that Mr Ferdinands’ claims were frivolous and vexatious or otherwise constituted an abuse of process (at [24]). Her Honour concluded, at [38], that although the proceedings on their face concerned alleged breaches of copyright, Mr Ferdinands’ action ultimately concerned the same issues which he had previously litigated:

The respondent invites the Court to draw the inference that Mr Ferdinands true motivations for commencing this action is to agitate the same controversies that have been previously tried and determined, albeit under the thin disguise of a copyright infringement action. The content and tenor of the Statement of Claim is capable of supporting that inference, especially having regard to the allegations levelled at the respondents officers to the effect that they have acted with malice and transferred malice (another undefined term used more than once in the Statement of Claim) together with the absence of any clear factual foundation for the copyright infringement action. Mr Ferdinands allegation that an artistic work has been criminalised reinforces the view that these two components of the claim cannot be extricated from each other, whether objectively or subjectively in the mind of Mr Ferdinands.

42    Justice Charlesworth formed the view that the proceeding constituted an abuse of process based on the similarities between the documents filed in that proceeding and earlier litigation, as well as Mr Ferdinands’ oral submissions which recited the same grievances that formed the subject matter of earlier litigation. At [49], her Honour said:

The oral submissions confirmed that Mr Ferdinands intends in this proceeding to invoke the procedures of the Court so as to urge a wide ranging investigation into his past dealings with his former employer, which he expects will culminate in the payment of, at least, a large settlement sum.

43    Justice Charlesworth found that “[w]hatever be Mr Ferdinands’ subjective purpose in commencing and continuing the proceeding, it is a purpose foreign to the proper purposes for which the Court’s processes should be invoked” (at [51]). Her Honour dismissed the proceedings and concluded at [54]:

The “dispute” forming the subject of this proceeding has either been determined in the past or is otherwise so poorly articulated that it cannot be understood, or both. In light of the history of the action and the principles to which I have referred, Mr Ferdinands should not be granted any further opportunity to demonstrate that the proceeding is bona fide and that he is willing and able to plead a case in a manner that enables the respondent to fairly understand the case against it.

44    Mr Ferdinands sought leave to appeal in Ferdinands v State of South Australia [2018] FCA 589. His application for leave to appeal was unsuccessful. Mr Ferdinands’ grounds of appeal relevantly included allegations of transferred malice and vexatious prosecution against a previous South Australian Commissioner of Police, Premier, and Attorney General. Wide ranging allegations of racism, fraud, dishonesty and corruption within the South Australian police force were also advanced. Justice Kerr observed, at [28], that Mr Ferdinands’ pleadings, submissions and evidence each sought to relitigate the same issues as his previous litigation:

Mr Ferdinands’ written submissions are in the same vein as his application for leave to appeal, draft notice of appeal, affidavits and interlocutory application, and make wide ranging allegations of abuse of process, fraud and malice, which focus on the subject of previous litigation, being proceedings in the Adelaide Magistrates Court and the termination of his employment.

45    Justice Kerr was satisfied that the material provided by Mr Ferdinands in support of the appeal largely related to allegations of fraud, malice and abuse of power against persons involved in the termination of his employment with the South Australian police force and “[v]ery little” discloses the basis for any claim for breach of copyright (at [50]). His Honour dismissed the application for leave to appeal with costs and (at [40]-[41]) upheld Charlesworth J’s finding that the proceedings were frivolous and vexatious or otherwise constituted an abuse of process:

40     None of the materials filed by Mr Ferdinands in support of his present application for leave to appeal identify an error in her Honour’s reasoning in having reached that conclusion. In so far as Mr Ferdinands’ application and submissions are comprehensible, what he advances therein does not even purport to put into contest the primary judge’s conclusion regarding his underlying purpose in bringing the action which her Honour held to be an abuse of process.

41     Moreover the materials Mr Ferdinands has filed in support of his present application for leave to appeal, including, but not limited to, those I have referred to at [15] above reinforce rather than undermine the correctness of the primary judge’s conclusion that to permit the action to continue as pleaded would be to allow the Court’s processes to be used as an instrument of unjustified harassment of the Respondent. I also accept the Respondent’s submissions that none of the assertions expressed by Mr Ferdinands constitute identifiable grounds of appeal. For those reasons I am satisfied that the decision at first instance is not attended by sufficient doubt to warrant reconsideration by a Full Court.

Other appeals

46    In addition to the applications outlined above, Mr Ferdinands has commenced or attempted to commence several appeals which were dismissed as a result of deficiencies in form and/or substance. For example:

(1)    In Ferdinands v Chief of Army [2003] FCAFC 9, Mr Ferdinands sought leave to appeal the dismissal of an application for discovery brought in relation to “information” which Mr Ferdinands sought in aid of his appeal from a decision of the Defence Force Discipline Tribunal. Mr Ferdinands sought to rely on documents which were not relevant to the appeal, which was limited to a question of law. Justice Spender (with whom Ryan, Dowsett and Selway JJ agreed) observed, at [3], that Mr Ferdinands “apparently has little understanding of the nature of the appeal he seeks to bring from the decision of the Tribunal to the Federal Court of Australia”. The application for leave to appeal was dismissed with costs.

(2)    In Ferdinands v Chief of Army [2003] FCAFC 10, the proposed appeal of the Defence Force Discipline Tribunal’s dismissal of an appeal from the decision not to grant an extension of time within which to appeal was dismissed for want of prosecution. Justice Spender (with whom Ryan, von Doussa, Dowsett and Selway JJ agreed) identified two bases for dismissing Mr Ferdinands’ appeal. First, Mr Ferdinands abstained from prosecuting his appeal with due diligence and did not proffer a satisfactory explanation for the lengthy delays in lodging and prosecuting his appeal. Mr Ferdinands acknowledged that he had not in fact complied with the requirement to prepare the appeal books, either by the time appointed by the Registrar or at any subsequent time. Impecuniosity is not a basis on which a person is relieved of the obligation to prosecute their appeal with due diligence (at [36]). Secondly, the “questions of law” which Mr Ferdinands sought to raise concerning the constitutional validity of Defence Force Magistrates did not provide any arguable grounds of appeal (at [34]). The form in which these grounds were raised was equally deficient. The document styled as a “NOTICE OF MOTION - QUESTIONS OF LAW RESERVED” were illustrative of Mr Ferdinands’ misunderstanding of the statutory powers concerning the stating of a case or the reserving of a question of law, and misconception of the appellate jurisdiction of the Federal Court.  

(3)    In Ferdinands v Chief of Army [2013] FCAFC 103, the Full Court considered an application to make a vexatious proceedings order against Mr Ferdinands. On or about the day that that application was filed, the Rules were changed to support the then recent changes to s 37AO of the FCA Act, relevantly through the removal of the words “without the leave of the Court”. The Full Court declined to make an order under s 37AO at that juncture in light of the difficulty with the timing of the change of the Rules, and instead made an order to protect the processes of the Court in a form that would achieve a similar result (at [22]). Allsop CJ (with whom North, Bennett, Siopis and Logan JJ agreed) recognised that as at 2013, evidence of the repeated attempts by Mr Ferdinands to challenge his 1999 conviction amply demonstrated a vexatious character and justified the respondent seeking an order to protect against further litigation and costs in proceedings instituted by Mr Ferdinands. Allsop CJ noted, at [14], that Mr Ferdinands’ grounds of appeal:

… did not coherently identify any question of law. In substance, what is sought is another challenge to a conviction made 14 years ago in relation to which an application for an extension of time within which to appeal has already been refused. That challenge is based on the challenge to the testimony of witnesses given before the DFM – the relevant witnesses being believed and the applicant’s evidence being found to be less than persuasive. The notice of appeal does not disclose a question of law, and on that basis it is incompetent.

Further, by reference to the Tribunal’s reasons, the Chief Justice said at [21]-[23]:

21     A number of things can be said about those reasons. They identify, first, that there had already been an application for an extension of time and further such applications are an abuse of process. Secondly, no coherent reason was identified in any material before the Appeal Tribunal to explain the delay. Thirdly, the Appeal Tribunal referred to the increasingly strident assertions of the applicant which were repeated today in the assertions without evidence of the gravest impropriety of those who had a connection with the trial before the DFM. The conclusions of the Appeal Tribunal in relation to an extension of time were, in my view, plainly correct.

22    The history of this matter reveals repeated and dogged applications making the same broad sweeping assertions to revisit a conviction of 14 years standing. The applicant’s submissions reveal no legal basis for either (a) the identification of a proper question of law, or (b) any doubt in the Appeal Tribunal’s decision. The affidavit of Mr Prince amply demonstrates a vexatious character to the appeal and a justification for seeking an order to protect the respondent from further litigation and cost. The Court also has an entitlement to protect its own procedures and proceedings. This is the second occasion in which five judges have been brought to deal with the matter

23    Sweeping allegations of impropriety and fraud have been made from the bar table. There is no basis that has been identified in the evidence to justify those matters, and this court has power, as I said, to protect its own processes and proceedings. I have already identified earlier the difficulty with the timing of the change of the rules. In my view, some order, however, should be made conforming with the authority of this Court to protect its own procedures.

We note that since the Full Court’s orders on 12 August 2013, Mr Ferdinands has commenced over 20 proceedings in various Australian courts, including an application for special leave to appeal the Full Court’s reasons to the High Court on 12 February 2014, which was dismissed.

(4)    In Ferdinands v The State of South Australia [2017] FCA 32, White J refused an application for leave to appeal a decision of Charlesworth J concerning claims of bias. Justice White described the document resembling a draft notice of appeal as a “discursive document which canvasses matters going beyond the actual orders made by Charlesworth J” (at [10]). Justice White found that Mr Ferdinands’ approach to the appeal was “misconceived” as “[i]t is necessary on an appeal for an appellant to show error. Merely restating the arguments which were made at first instance does not have this effect” (at [17]). Justice White concluded at [20]:

Mr Ferdinands may be disappointed with some of the rulings made by Charlesworth J to date in the proceedings.  The existence of such a disappointment does not, however, warrant a judge recusing himself or herself from hearing a case. 

(5)    In Ferdinands v Registrar Cridland [2021] FCA 592, White J refused an application for judicial review of a Registrar’s decision to refuse to accept documents for filing. Justice White noted that this was the fourth judgment since November 2020 on applications by Mr Ferdinands in respect of refusals by a Registrar, acting under r 2.26 of the Rules, to accept documents for filing. Justice White highlighted several mistaken apprehensions of Mr Ferdinands which were maintained despite Mr Ferdinands being alerted to these issues in the earlier judgments — for example, Mr Ferdinands’ assumption that the State of South Australia is a body corporate incorporated under the Corporations Act 2011 (Cth) and reliance on statutory provisions which do not provide a basis for a cause of action by which he can pursue grievances arising out of his termination as a police officer. Additionally, the relief sought included declarations “in such sweeping and general terms as to be fanciful” (at [36]). Accordingly, White J concluded that there was no error in the Registrar’s characterisation of the proposed proceedings as frivolous and vexatious.

(6)    In Ferdinands, In the matter of an application for leave to issue or file [2023] HCATrans 101, Mr Ferdinands required leave to file an application for a constitutional or other writ in accordance with a direction made by a single Justice of the High Court on 16 May 2023 that documents could not be accepted for filing by a Registrar unless leave was first obtained, pursuant to r 6.07.2 of the High Court Rules. The procedure for obtaining such a direction is initiated by a document appearing to a Registrar on its face to be an abuse of process of the Court, to be frivolous or vexatious, or to fall outside the jurisdiction of the Court: r 6.07.1 of the High Court Rules. Mr Ferdinands’ proposed application relevantly exhibited each of these characteristics. It concerned a broad range of complaints and relief sought against judges, the High Court, the Prime Minister, “any legal practitioner” and the police. The underlying complaint appeared to arise from Mr Ferdinands’ 1999 prosecution and the alleged impropriety of the conduct of that prosecution and subsequent appeals, up to and including his appeals before Charlesworth J. In refusing leave, Gageler J (as his Honour then was) described Mr Ferdinands’ proposed application as “not articulated comprehensibly” and concluded it was “frivolous, vexatious, and an abuse of process”. Justice Gageler also found that any proper bases for the relief sought in the proposed application were “unclear” and some of the relief was beyond the jurisdiction of the High Court.

47    Having regard to the above, we have no hesitation in concluding that Mr Ferdinands has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. The conditions in s 37AO are satisfied. The Court’s discretion in relation to making a vexatious proceedings order is enlivened. We now turn to consider whether the Court should exercise its discretion to make a vexatious proceedings order against Mr Ferdinands.

Should a vexatious proceedings order be made?

48    The Court has concluded that a vexatious proceedings order should be made against Mr Ferdinands and that the case for doing so is overwhelming. The reasons for so concluding are as follows.

49    The Court is satisfied that a vexatious proceedings order is reasonably necessary to safeguard the Court’s finite resources and ensure they are available to other litigants. The Court is entitled, and in the present circumstances should, act to protect its own processes and procedures. The drain on public resources as a result of Mr Ferdinands’ repeated forays in this Court and others has been significant. It is inappropriate to use court resources, which are public resources, with abandon to litigate and relitigate matters which have no prospects of success and in a way that repeatedly abuses the court’s processes. As recognised in Storry at [18], the extent of the increasing disruption to the efficient management of the Court’s business caused by allowing vexatious proceedings to be instituted and maintained without check is a serious matter. The Court must ensure that other litigants are not unfairly prejudiced and that resources are not unnecessarily wasted or diverted from dealing with the resolution of proceedings concerned with legitimate matters. Mr Ferdinands has had his day in court – he has in fact had numerous days in court, and more than ample opportunity to pursue any legitimate claims (and rights of appeal) that may have been available to him. As has been repeatedly observed, he has exhausted the legitimate limits of pursuing his claims. His continued attempts to commence proceedings have long since become a vehicle for him to make baseless complaints riddled with scandalous accusations against an ever-growing list of people. The claims he seeks to pursue are simply not justiciable by this Court in the form in which he seeks to advance them.

50    The steps previously taken in 2013 to protect the Court’s resources from the unnecessary expense, burden and inconvenience caused by Mr Ferdinands have not proved effective. The additional step of making a vexatious proceedings order is now warranted. Making such an order is both necessary and sensible and it is a commensurate response to the time and resources required to deal with Mr Ferdinands’ frequent (unsuccessful) filings. In the absence of a vexatious proceedings order, we are satisfied that Mr Ferdinands will continue to seek to abuse the processes of the Court in a similar way to what he has done over the last two decades. To permit Mr Ferdinands to continue to consume the finite resources of the Court on unmeritorious claims, which have already been heard and determined, would be prone to bring the administration of justice into disrepute.

51    Mr Ferdinands has over many years demonstrated a determination to continue to litigate or attempt to litigate the grievances he harbours about the termination of his employment as a police officer and its consequences. He does so without regard to the proper administration of justice, the jurisdiction of the Court or the assistance provided to him by the Registry and the Court.

52    The waste of Court resources occasioned by Mr Ferdinands is compounded by the style of documents which Mr Ferdinands seeks to file. As is evident from the Appeal Judgment at [57]-[58], the grounds of appeal and orders sought by Mr Ferdinands are largely prolix, irrelevant and are directed to relief beyond the jurisdiction of the Court. The submissions and other documents styled as pleadings which Mr Ferdinands has sought to file in this proceeding are manifestly and significantly in excess of the usual page limits that one would expect. That is a recurrent attribute of the documents he has generated in his other proceedings as well. The Court, beginning with the Registry staff on the front line, and thereafter Judges, at first instance and then on appeal, have been compelled to expend considerable time in trying to make sense of the documents lodged by Mr Ferdinands and the scandalous claims made therein. As we observed in the Appeal Judgment at [65], the allegations made by Mr Ferdinands and the submissions made in support of them could not be advanced by any responsible legal practitioner consistently with their obligations owed to the Court.

53    Mr Ferdinands uses the Court process to make unbridled and wild allegations against a wide range of persons including:

(1)    politicians (including the Prime Minister and current and former Premiers of South Australia);

(2)    current and former Attorneys-General;

(3)    the Australian Federal Police and South Australian police forces, including the Commissioner of Police;

(4)    Chief of Army;

(5)    the Chief Justice and other Justices of the High Court of Australia;

(6)    Judges of this Court;

(7)    Registrars and Registry staff of this Court; and

(8)    Senior public servants in the state of South Australia, including the Director of Public Prosecutions and Solicitor-General.

54    His conduct in repeatedly filing material that is replete with serious yet unsubstantiated allegations of misconduct against a range of public officials is properly to be described as scandalous.

55    The nature of Mr Ferdinands’ conduct, and the allegations he has made, particularly against Judges of the Court, might in other circumstances cause the Court to consider exercising its power under s 31 of the FCA Act to deal with Mr Ferdinands’ conduct as a contempt of court. The “cardinal feature” of the Court’s exercise of power for contempt is to “protect the due administration of justice”: Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 at 429 [112] (Hayne J). At this time, we do not regard it as necessary or utile to initiate contempt proceedings against Mr Ferdinands in circumstances where the Court intends to make a vexatious proceedings order against him. The Court has had regard to the features of Mr Ferdinands’ conduct in the proceedings he has initiated which might otherwise inform consideration of whether he should be referred to the Principal Registrar for the institution of contempt proceedings as part of our exercise of the discretion as to whether to make a vexatious proceedings order. The Court regards the following features of the conduct of Mr Ferdinands as weighing strongly in favour of making the vexatious proceedings order against him.

56    Mr Ferdinands’ conduct scandalises the court. By it he challenges the authority of the judicial system in a way that is either directed to, or likely to have the effect of, eroding public confidence in the administration of justice. Conduct that is analogous to Mr Ferdinands’ conduct as revealed in this application has been recognised as conduct which may amount to scandalising the court. Each of the following species of conduct has been echoed by Mr Ferdinands in many of the proceedings which the Court has considered for the purpose of this application:

(1)    an allegation that a court or judge is corrupt: Attorney-General for the State of Queensland v Matters [2020] QSC 258 at [49] (Jackson J);

(2)    an allegation that a judge is dishonest or has engaged in fraud: Martin v Trustrum (No 2) [2003] TASSC 50 at [28], [36]–[38] (Slicer J);

(3)    conduct which impugns the impartiality of the court or judge: R v Collins [1954] VLR 46 at 49 (Sholl J); or

(4)    conduct which imputes improper motives to those participating in the administration of justice: R v Arrowsmith [1950] VLR 78 at 82 (Dean J);

(see Professor David Rolph, Contempt (Federation Press, 2023) (at 253–254, 284–286)).

57    Mr Ferdinands’ documents are replete with examples of conduct which scandalises the Court. It is unnecessary to reproduce verbatim the allegations made by Mr Ferdinands. It suffices to summarise the broad nature of those allegations. He repeatedly makes allegations of racism, fraud, forgery, embezzlement, conspiracy, hate crimes, persecution of whistleblowers, misconduct and obstruction of justice by judicial officers and members of the Executive. He has described members of the judiciary as lacking maturity and mental wellbeing, engaging in slovenly conduct, dangerous and risky behaviour, and betraying “every ethical rule in the book”.

58    These allegations have also been communicated by Mr Ferdinands in his correspondence with the Registry of this Court. The correspondence sent by Mr Ferdinands to the Registry containing allegations made against the judiciary and the courts generally has been voluminous.

59    Although the Court has not sought to initiate a process to consider whether to exercise the Court’s power to deal with contempt under s 31 of the FCA Act, the Court does not foreclose that course as a future possibility, depending amongst other things on Mr Ferdinands’ conduct following the vexatious proceedings order being entered. For present purposes it suffices to note that the nature of Mr Ferdinands’ conduct is another reason which compels us to conclude that it is both necessary and appropriate to make an order under s 37AO of the FCA Act.

CONCLUSION

60    A vexatious proceedings order will be made against Mr Ferdinands. Having regard to the many different ways in which Mr Ferdinands has sought to frame the proceedings he has instituted over the years, and the inefficacy of the 2013 order which was limited by reference to subject matter, the Court has concluded that the order should be made in general terms and not limited to proceedings of a particular type. The Court will make orders accordingly.

Associate:

Dated:    9 December 2024